Calcutta High Court
C.I.T vs Asha Mangal Portfolio Pvt.Ltd on 2 August, 2010
Author: Sengupta
Bench: Sengupta, Kanchan Chakraborty
ITA No. 83 of 2009
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction
[Income Tax]
ORIGINAL SIDE
C.I.T., KOLKATA-I
Versus
ASHA MANGAL PORTFOLIO PVT.LTD.
BEFORE:
The Hon'ble JUSTICE SENGUPTA
A N D
The Hon'ble JUSTICE KANCHAN CHAKRABORTY
Date : 2nd August, 2010.
After hearing Mr. Chatterjee and going through the
impugned judgment and/or order, this appeal will be heard on
the following substantial questions of law in relation to
assessment years 2001-02, 2002-03 and 2003-04:
"(i) Whether on the facts and in the circumstances
of the case, the Ld. Tribunal has erred in law in holding
that the assessee is not the legal owner or the lessee of the
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property in question and that the assessee's income from
warehousing and other activities exploiting the house
property be taxed under the head "income from business"
and not under the income from the house property?
(ii) Whether on the facts and in the circumstances
of the case the Ld. Tribunal has erred in law in not
considering that the assessee was the owner of the
property in question for the purposes of section 22 read
with section 27 of the Income Tax Act, 1961, since the
assessee was in a position to exercise rights of the owner
in its own right to hold the land permanently, to own and
use the superstructure and to earn income from letting
into the said property?
(iii) Whether on the facts and in the circumstances
of the case the Ld. Tribunal has erred in law in allowing
expenditure and depreciation on the building in question
and intangible assets (lease rent), when such assets were
held permanently to exercise rights to the owner in its own
right and the rental income received is required to be
taxed under the head "Income from House Property" and
the assessee is not entitled to any deduction under law
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except those available under section 24 of the Income Tax
Act, 1961 ?"
Let notice of appeal be served by the department on
the respondent.
Let requisite number of paper books be filed within two months from date.
Mr. Chatterjee, learned advocate, wanted us to admit the appeal in relation to assessment year 2000-01 in connection with reopening of the assessment under Section 147 of the Act.
We have gone through the judgment and/or order of the learned Tribunal in relation to the said assessment year and on that subject, we find the learned Tribunal has correctly recorded the fact that the basis for reopening of the assessment under Section 147 of the Act is only on discovery of certain documents being found involving the assessee and such proceeding was made in the name of M/s. Binani Metals Ltd.. The assessment order was not sought to be reopened based on the materials filed in the record but from external sources. It is said that on search and seizure of third party, M/s. Binani Metals Ltd. some new documents were found. In 4 view of special provisions contained in Chapter XIVB, such information cannot be made the basis for reopening the assessment already concluded. Therefore, we think that the learned Tribunal has correctly held that reopening of the assessment made by the assessing officer is void ab initio and non est. We, therefore, decline to admit the appeal on this object.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SENGUPTA, J.) (KANCHAN CHAKRABORTY, J.) sm AR[CR]